After being questioned by U.S. Customs and Border Protection (CBP), I was told that I was being denied admission and returned to Canada.

Question:

I am a Canadian citizen who has lived in the United States with my fiancé for several years in Nevada. I return to Canada periodically, however, I spend the majority of my time in the United States. On January 30, 2015, after returning from a visit to see friends and family in Canada, I was stopped at the Peace Bridge Port of Entry. I was detained and questioned for several hours.

After being questioned by U.S. Customs and Border Protection (CBP), I was told that I was being returned to Canada. The officer also told me that I “overstayed” and misrepresented myself. I was given a series of documents and told I was barred from entering the United States for a period of five years.

The whole experience at the border was terrifying and I have no idea what to do now. My entire life is in Nevada, and it is my understanding that I cannot reenter the United States any time soon.

Answer:

I am sorry to hear about your experience at the border. We understand that this is a very difficult time in your life and will do everything we can to assist you. I would strongly encourage you to contact our office as soon as possible to discuss your case in depth. The sooner we review the documents issued to you, the quicker we can begin engaging with the Peace Bridge port of entry to determine what can be done in the short-term.

Based on the information you provided in your email, you may be dealing with unlawful presence, misrepresentation, and a possible expedited removal. Below, I have provided some general information regarding those topics that you may find helpful.

Unlawful Presence

When a foreign national is in the United States without proper permission/status they begin to accumulate what is referred to as unlawful presence. Pursuant to section 212(a)(9)(B)(i)(I) of the Immigration and Nationality Act ("INA"), a foreign national who was unlawfully present for more than 180 days but less than one (1) year, who voluntarily departed the United States prior to the initiation of removal proceedings and who seeks admission within (3) years of the date of such departure or removal from the United States, is inadmissible. Additionally, pursuant to section 212(a)(9)(B)(i)(II) of the INA, a foreign national unlawfully present for one (1) year or more, who seeks admission within (10) years of the date of the foreign national's departure or removal from the United States, is inadmissible.

When calculating unlawful presence, the date that the Form I-94 (or any extension) expires is considered authorized and is not counted. In addition, the date of departure from the United States is not counted as unlawful presence. In duration of status (D/S) cases where the Department of Homeland Security or an Immigration Judge or the Board of Immigration of Appeals makes a formal status violation finding, the foreign national begins accruing unlawful presence on the date of the finding (i.e., the date the finding was published/communicated). 9 FAM 40.92 N1.

Fraud/Misrepresentation

Anyone who attempts to enter the United States through misrepresentation can be found inadmissible. Pursuant to INA § 212(a)(6)(C)(i),

“Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this Act is inadmissible.”

The penalty for willful misrepresentations is severe: a lifetime bar to the United States, unless a waiver is obtained. In order to be found inadmissible under INA § 212(a)(6)(C)(i), it must be determined that: (1) There has been a misrepresentation made by the applicant; (2) The misrepresentation was willfully made; (3) The fact misrepresented is material; and (4) The foreign national by using fraud or misrepresentation seeks to procure, has sought to procure, or has procured a visa, other documentation, admission into the United States, or other benefit provided under the INA. 9 FAM 40.63 N2.

Expedited Removal

You indicated that an expedited removal may have been issued against you. Expedited Removal is a process that the Department of Homeland Security (DHS)/Customs and Border Protection uses to remove people from the United States who attempt to enter the country and are inadmissible under section 212(a)(6)(C) (Fraud) or 212(a)(7) (without proper documents) of the Immigration and Nationality Act. If, at the time of admission, the DHS officer believes that a foreign national is attempting to enter the country either by fraud or without proper documents, the immigration officer may refuse the foreign national's entry and order him or her immediately removed from the United States. After being removed from the United States through expedited removal, you are barred from returning to the United States for 5 years.

Parole

Based on the information provided above, it appears that you have been effectively barred from returning to what you consider your “home.” However, due to the circumstances of your case, returning to Nevada does not appear to be an option at this point. Your best-case scenario may be to request a brief admission into the United States, referred to as parole, for the limited purpose of returning to Nevada to wind down your affairs, before returning back to Canada to further address your immigration issues. Parole is a legal fiction that allows for the physical entry of an individual into the United States without actually "admitting" him or her into the country. Parole is commonly used to allow otherwise inadmissible individuals to enter the country for specific reasons, for a limited period of time, and usually involves a degree of urgency. Customs and Border Protection ("CBP") however is reluctant to extend parole to anyone who does not meet a higher threshold of "humanitarian need."